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2012 DIGILAW 261 (UTT)

Madan Mohan Kukreti v. State of Uttarakhand

2012-06-12

V.K.BIST

body2012
JUDGMENT : V.K. Bist, J. This appeal, preferred under Section 374 (4) of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.), is directed against the judgment and order dated 02.08.2004 passed by Special Judicial Magistrate IInd, Dehradun in Criminal Case No. 3205 of 2003 under Section 138 of Negotiable Instruments Act (hereinafter referred as to the Act), whereby the learned Court below allowed the objection filed by the opposite party no.2, Ram Nath Tewari and discharged him from the offence. 2. Brief facts, leading to filing of this appeal, are that the complainant/appellant filed a Complaint Case No. 3205 of 2003 before the Court below with the assertion that the opposite party no.2 issued a cheque bearing no. 037715 dated 30.06.2000 amounting to Rs. 78,000/- of State Bank of India, Main Branch, Dehradun in lieu of mutual exchange, with the assurance that the cheque will be encashed. However, when the cheque was produced in State Bank of India, Tel Bhawan, Dehradun on 14.07.2000 in order to credit the sum in the account of the complainant, the same was dishonoured by the Bank due to insufficient fund in the account of the accused/opposite party. In this regard, the complainant sent registered notice to the opposite party through his Advocate on 27.07.2000 asking him to pay within fifteen days the sum of Rs. 78,000/- including interest and the expenditure towards the notice, however the opposite party refused to take the notice. It was averred in the complaint that despite making demand personally, inasmuch as informing repeatedly, no payment was made by the accused/respondent no.2. Before the Court below, the complainant examined himself under Section 200 Cr.P.C. and in support of his contention he also produced documentary evidence before the trial Court. Being satisfied that a prima-facie case is made out against the opposite party, the trial Court vide order dated 01.12.2000 summoned the accused/ respondent no.2 under the Act. Feeling aggrieved with the summoning order, the opposite party appeared before the trial Court and protested the summoning order by filing objection and stated that the matter in issue is civil in nature. He denied service of any notice upon him sent by the complainant with the assertion that he would have replied the notice, in case it would have served upon him and in absence of service of notice, entire proceeding of complaint case is bad in the eyes of law. He denied service of any notice upon him sent by the complainant with the assertion that he would have replied the notice, in case it would have served upon him and in absence of service of notice, entire proceeding of complaint case is bad in the eyes of law. He assailed the impugned summoning order on the ground that the complainant intentionally concealed the real facts, as the opposite party issued two cheques i.e. cheque no. 037715 dated 30.06.2000 for a sum of Rs. 78,000/- and another cheque no. 037714 dated 31.05.2000 for a sum of Rs. 35,000/- in favour of the complainant in lieu of the compromise dated 06.05.2000, which was executed in presence of the witnesses in between him and the complainant, according to which after encashment of the cheque dated 31.05.2000 amounting to Rs. 35,000/- and cheque dated 30.06.2000 amounting to Rs. 78,000/- the complainant had to proceed for legal recourse so that, according to the compromise, the land would be transferred in favour of the opposite party. He asserted that though cheque no. 037714 was honoured, but cheque no. 037715 could not be encashed due to financial crises of respondent no.2 for which the complainant was duly informed. He further asserted that complainant had to execute sale deed in favour of the opposite party, as stipulated in the compromise, but the condition contained in the compromise was not satisfied, hence no offence under the Act is made out against the opposite party. The trial Court, being satisfied with the protest objection, vide impugned order dated 02.08.2004 recalled its own summoning order dated 01.12.2000. Feeling aggrieved with this order, the complainant has filed instant appeal. 3. I have heard Mr. R.P. Nautiyal, Advocate for the appellant, Mrs. Mamta Bisht, A.G.A. for the State, Mr. Rajendra Kotiyal, Advocate for respondent no.2 and perused the record. 4. Learned counsel for the appellant argued that no provision is contained under the Criminal Procedure Code against the order passed under Section 204 Cr.P.C., which would empower the trial Court to recall or set-aside the order passed on the basis of statement tendered by the complainant and his witnesses under Section 200 and 202 Cr.P.C. and the documentary evidence produced by the Complainant before the Court. He contends that because after considering the evidence produced under Section 200 and 202 Cr.P.C., a prima-facie case was made out and the accused/respondent no.2 appeared before the trial Court; the trial Court proceeded further in the matter, then there is no provision of law to set-aside the earlier order of taking cognizance and acquit the accused/ respondent no.2 without providing any opportunity to the appellant to adduce his entire evidence. He further contended that there is clear provision under the Code of Criminal Procedure that after taking cognizance, when the accused appears, his statement under Section 251 Cr.P.C. should have been recorded, but without recording such statement, the learned trial Court set-aside its earlier summoning order. He further contended that the order impugned suffers from illegality, as the trial Court neither acquitted the accused/opposite party nor discharged him, but he merely set-aside the summoning order and discharged the sureties. He contended that the only option to the trial Court was to acquit the accused, that also after completing the whole trial. Learned counsel for the appellant relied on the judgment of Apex Court, reported in 2004 (6) Supreme 662 , 2004 (6) 371, (2004) 7 and Supreme Court Cases-338. 5. On the other hand, learned counsel for respondent no.2 submitted that, for the same cause of action, the complainant has availed parallel remedies by filing complaint case as well as criminal case under Section 420 I.P.C. He contended that in such cases, if an offence is committed, two parallel remedies i.e. under Section 138 of the Act and that of under Section 420 I.P.C. could not be proceed simultaneously. He submitted that there was an agreement in between the parties in respect of execution of sale deed and two cheques i.e. cheque no. 037715 dated 30.06.2000 for a sum of Rs. 78,000/- and another cheque no. 037714 dated 31.05.2000 for a sum of Rs. 35,000/- were issued in favour of the complainant but the condition contained in the compromise was not fulfilled, hence no offence under the Act is made out against the opposite party. He vehemently argued that the matter in issue before the Court below was purely civil in nature and only legal recourse available to the complainant was to file suit in respect of breach of contract, which was not availed. He vehemently argued that the matter in issue before the Court below was purely civil in nature and only legal recourse available to the complainant was to file suit in respect of breach of contract, which was not availed. Learned counsel for the respondent no.2 further argued that before the verdict in Adalat Prasad vs. Roop Lal Jindal, reported in 2004 (6) Supreme 371 , the Magistrate was fully empowered to recall its order passed under Section 204 Cr.P.C., and verdict of the judgment of Hon’ble Apex Court shall not have any retrospective effect, therefore, the trial Court has rightly recalled its previous order summoning the opposite party to appear before him for which the trial Court was fully empowered to do so, at that very point of time. Learned counsel for the respondent no.2 further contended that so far the complaint case is concerned, under the law, an appeal shall lie only when the accused has been acquitted from the charges, but no appeal shall lie against the orders where the accused has been discharged, as has been done in the case in hand, therefore no appeal is maintainable. He lastly contended that there is no provision contained under the law against the discharge order passed rightly or wrongly, however the alternative remedy available to the complainant was to file revision before the Revisional Court i.e. District & Sessions Judge concerned. 6. The objection of learned counsel for respondent no.2 is that appeal is not maintainable and appellant should have filed revision. I have considered this submission. Order impugned is not an order of acquittal. But, considering the legal question involved and also in the interest of justice, this Court treats the appeal as revision. 7. Another question for determination before the Court is whether order for issuance of process in the stage of trial can be reviewed or reconsidered by the Magistrate. 8. Order impugned is not an order of acquittal. But, considering the legal question involved and also in the interest of justice, this Court treats the appeal as revision. 7. Another question for determination before the Court is whether order for issuance of process in the stage of trial can be reviewed or reconsidered by the Magistrate. 8. Prior to Adalat Prasad’s case- (2004) 7 SCC 338 , the Magistrate was empowered to recall his order in view of judgment of Hon’ble Supreme Court in the case of K.M. Methew vs. State of Kerala- (1992) 1 SCC 217 in which it was held that it is open to the accused served with summons to plead before the Magistrate that the process against him ought not to have been issued and if the Magistrate is satisfied with such an argument, he may drop the proceedings on reconsideration of the complainant on the ground that there was no ‘offence for which the accused could be tried’. 9. Thereafter, larger Bench of Hon’ble Supreme Court in Adalat Prasad vs. Rooplal Jindal and others (2004) 7 SCC 338 has held that Methew’s case does not lay down the correct law. Relevant paragraph of Adalat Prasad case is being quoted below:- “ Therefore, in our opinion the observation of this court in the case of Mathew that for recalling an erroneous order of issuance of process, no specific provision of law is required, would run counter to the scheme of the Code which has not provided for review and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew case that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law.” 10. Thereafter, again in the matter of Subramanium Sethuraman vs. State of Maharastra and another, (2004) 6 SCC 662, three Judges Bench of Hon’ble Supreme Court declined to accept the submission of the appellant’s counsel to reconsider the decision in Adalat Prasad case and held that it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall said order. Relevant paragraphs 12, 13, 14, 15 and 17 in Subramanium Sethuraman’s case are being reproduced below:- “12. Relevant paragraphs 12, 13, 14, 15 and 17 in Subramanium Sethuraman’s case are being reproduced below:- “12. Having considered the argument of the learned counsel for the parties, we are of the opinion that the argument of the learned counsel for the appellant that the decision of this Court in Adalat Prasad’s case requires reconsideration cannot be accepted. It is true that the case of Adalat Prasad pertained to a warrant case whereas in Mathew’s case the same pertained to a summons case. To this extent, there is some difference in the two cases, but that does not, in any manner, make the law laid down by this Court in Adalat Prasad’s case a bad law. 13. In Mathew’s case this court held that consequent to a process issued under Section 204 by the concerned Magistrate it is open to the accused to enter appearance and satisfy the Court that there is no allegation in the complaint involving the accused in the commission of the crime. In such situation, this court held that it is open to the Magistrate to recall the process issued against the accused. This Court also noticed the fact that the Code did not provide for any such procedure for recalling the process. But supported its reasoning by holding for such an act of judicial discretion no specific provision is required. 14. In Adalat Prasad’s case, this Court considered the said view of the Court in K.M. Mathew’s case and held that the issuance of process under Section 204 is a preliminary step in the stage of trial contemplated in Chapter XX of the Code. Such an order, made at a preliminary stage being an interlocutory order, same cannot be reviewed or reconsidered by the Magistrate, there being no provision under the code for review of an order by the same Court. Hence, it is impermissible for the Magistrate to reconsider his decision to issue process in the absence of any specific provision to recall such order. In that line of reasoning this Court in Adalat Prasad’s case held: “Therefore, we are of the opinion that the view of this court in Mathew’s case (supra) that no specific provision is required for recalling and issuance order amounting to one without jurisdiction, does not laid down the correct law.” 15. In that line of reasoning this Court in Adalat Prasad’s case held: “Therefore, we are of the opinion that the view of this court in Mathew’s case (supra) that no specific provision is required for recalling and issuance order amounting to one without jurisdiction, does not laid down the correct law.” 15. From the above, it is clear that the larger Bench of this Court in Adalat Prasad’s case did not accept the correctness of the law laid down by this Court in K.M. Mathew’s case. Therefore, reliance on K.M. Mathew’s case by the learned counsel appearing for the appellant cannot be accepted nor can the argument that Adalat Prasad’s case requires reconsideration be accepted. 17. As observed by us in Adalat Prasad’s case the only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case.” 11. Issuance of process is a preliminary step in the stage of trial. Such order is an interlocutory order. The Magistrate does so only after being satisfied that there are sufficient grounds for proceeding. There is no provision in the Cr.P.C. to review such order and therefore, the Magistrate has no jurisdiction to recall such order. The learned Special Judicial Magistrate IInd, Dehradun committed illegality in recalling summoning order issued by him on earlier occasion. 12. In view of above discussion, the revision is allowed. Order dated 02.08.2004, passed by Special Judicial Magistrate IInd, Dehradun in Criminal Case No. 3205 of 2003 ‘Madan Mohan Kukreti vs. Ram Nath Tewari’ under Section 138 of Negotiable Instrument Act, is quashed. Let the record of trial Court be sent back to the Court concerned.